Cytowanie Komentarza do Powtórzonego Prawa 24:7

One who kidnaps a Jew is not liable unless he brings him onto his own property. Rabbi Judah said: “Until he brings him onto his own property and puts him to service, as it says, “If a man is found to have kidnapped a fellow Israelite, enslaving him or selling him” (Deut. 24:7). If he kidnaps his own son. Rabbi Ishmael the son of Rabbi Yohanan ben Beroka declares him liable, but the Sages exempt [him]. If he kidnapped one who was half a slave and half free, Rabbi Judah declares him liable, but the Sages exempt [him]. Exodus 21:16 and Deuteronomy 24:7 both state that one who kidnaps is liable for the death penalty. Our mishnah defines kidnapping as taking a person and bringing them forcefully onto one’s property. Just the mere act of taking the person does not constitute the type of kidnapping punishable by death. Rabbi Judah, basing himself on the verse in Deuteronomy states that even kidnapping and bringing onto one’s property is not punishable by death. Only if the kidnapper forces the abductee to work as a slave is he to be executed. According to the Rabbi Yishmael the son of Rabbi Yohanan ben Beroka, one who kidnaps his own son is not liable as a kidnapper, whereas the Sages say that he is. Rabbi Yishmael probably assumes that a parents’ authority over their children is so great that categorically the laws of kidnapping cannot apply. The Sages, representing the majority opinion, limit the parents authority by applying the laws of kidnapping even to one’s own child. The aforementioned verse in Deuteronomy clearly limits the laws of kidnapping to an Israelite who kidnaps another Israelite. According to all of the Sages in our mishnah, one who kidnaps a non-Jew is not liable for the death penalty. There is however a dispute with regards to one who is half a slave and half a free Jew (i.e. he was owned by two owners and one freed him while the other did not). According to Rabbi Judah, the mere fact that he is half a Jew means that the laws of kidnapping do apply to him. According to the Sages since he is half a slave, the laws of kidnapping do not apply.

הגונב את בנו – the reason that the Rabbis exempt him, as it is written (Exodus 21:16): “or is still holding him,” and it is an extra verse, for it is written (Deuteronomy 24:7): “If a man is found [to have kidnapped a fellow Israelite…]”, to extrapolate from it, and exclude this one, who is already in his power. And the Halakha is according to the Sages.

רבי יהודה מחייב – as it is written (Deuteronomy 24:7): “of his brethren of the children of Israel” – “of his brethren”, to exclude slaves, “of the children of Israel” – if it had written “of Israel”, we would have excluded someone who is half a servant and half a free-man. Now that it is written, from “of the children of Israel”, this is another exclusion, and where there is a double exclusion it indicates an exemplification (see Bava Kamma 86b). But the Rabbis hold, that “of his brethren” does not come to exclude slaves, for they are “brothers” in the commandments. Rather, the words “the children of Israel” excludes slaves; “of [the children of Israel]” excludes someone who is half-slave and half a free-man (see Mishnah Eduyot, Chapter 1, Mishnah 13 and Mishnah Gittin 4:5 which deals specifically with the case of someone who is a half-slave and half a free-man). And the Halakha is according to the Sages.

וגנב איש ומכרו AND HE THAT STEALETH A MAN, AND SELLETH HIM, [AND HE BE PREVIOUSLY FOUND IN HIS HAND, HE SHALL SURELY BE PUT TO DEATH] — Why is this statement made (how does the particular form of words used here tell us some point of law which is not contained in another text bearing upon the same subject)? Since it is said, (Deuteronomy 24:7) “If a man be found stealing any of his brethren … [then that thief shall die]”, I might say that I have here only the law that a man who stole a person is punishable with death. Whence, however, do I know that this is also the case if a woman or a person whose sex is not distinguishable or a hermaphrodite (טומטום ואנדרונינוס) has stolen a person? Scripture therefore states here: “Whosoever stealeth a man and selleth him”. — And again, since Scripture states here: “He that stealeth a man [shall be put to death]”, I might say that I have here only the law that if one steals a man he is punishable with death. Whence do I know that this is also the case if he has stolen a woman? Therefore Scripture states, (Deuteronomy 24:7) “[If a man be found] stealing any person [he shall be put to death]”. Consequently both verses are necessary: what the one omits the other tells us (Mekhilta; Sanhedrin 85b).